Can a West Virginia county clerk record an out-of-state probated will when only one official (acting as both judge and court clerk) signed the authentication certificate?

Official title

Opinion of the Attorney General Regarding the County Recording Wills Probated in Other States

Plain-English summary

Marion County had been refusing to record out-of-state probated wills when the foreign certification carried only one signature, in cases where one person served as both the foreign court's judge and clerk. The Marion County prosecutor asked the Attorney General whether the county had to record those wills.

The AG concluded that yes, the county should record them. The right statute is W. Va. Code § 57-1-12 (records and judicial proceedings of any court), not § 57-1-13 (records "not appertaining to a court"). Section 57-1-12 ordinarily wants two signatures, the foreign clerk's attestation plus the foreign judge's certification. But under a 19th-century West Virginia Supreme Court of Appeals decision (Wilson v. Phoenix Powder, 1895), when one person fills both offices in the foreign state, requiring two certificates from the same individual would be pointless. One signature satisfies the statute. The full faith and credit clause of the U.S. Constitution backs the same conclusion.

For wills that were not probated in the other state (so the document does not "appertain to a court"), § 57-1-13 applies instead. The same logic still works: a single individual wearing multiple hats can produce a valid certification.

What this means for you

For West Virginia county clerks

Based on this opinion, a clerk presented with an out-of-state probated will should look first at whether the foreign court was one in which a single official held both the judge and clerk roles. The example in the opinion is the Ohio Court of Common Pleas, where the probate judge is also clerk of the probate court. If that is the structure, one signature on the authentication is enough; do not refuse to record.

If the will was probated in a state where the judge and clerk are separate offices, the will should still bear two signatures, an attestation by the clerk and a certification by the judge that the attestation is in proper form.

For prosecuting attorneys advising county recorders

Read § 57-1-12 first when the document is a court record (probate is a court proceeding). Reach for § 57-1-13 only when the foreign document was never before a court. The opinion is explicit that probated wills are court records.

For estate and probate attorneys handling cross-state estates

When the decedent's primary estate was probated in a foreign jurisdiction and you need the will recorded in a West Virginia county to clear title, check the foreign state's probate court structure. If a single official acts as both judge and clerk in that state, a single triple-seal signature should be enough to satisfy § 57-1-12. If a county clerk refuses to record, this opinion is the citation to send.

For title examiners

Out-of-state probated wills with one-signature certifications should not be a per-se title defect, at least where the originating state combines the judge and clerk roles. Wilson v. Phoenix Powder is a 1895 West Virginia Supreme Court holding the AG treats as still good law.

Common questions

Q: Why does this even come up? Don't most states have separate clerks?
Many do, but a number of state probate courts (Ohio's Court of Common Pleas being the example in this opinion) put the same person in both seats. The signature problem is real and recurs.

Q: What if the foreign certification has the wrong words on it, or no seal?
The opinion does not bless deficient certifications generally. It addresses one specific question: whether two separate signatures are required when one person fills both roles. A defective seal or a certification that does not state the attestation is "in due form" is a different problem. The Hearne case (1916) cited in the opinion holds that a defective attestation means the records "will not avail as evidence in any court of this state."

Q: Does this apply to wills from outside the United States?
This opinion is about authentication under § 57-1-12, which the statute frames in terms of "records and judicial proceedings of any court." Foreign-country wills involve different authentication procedures (consular legalization, apostille under the Hague Convention) and are not addressed here.

Q: What's the difference between § 57-1-12 and § 57-1-13?
Section 57-1-12 covers court records. Section 57-1-13 covers public records "not appertaining to a court," for example certified copies of birth records or property records held by an executive office. The AG concluded a probated will is a court record.

Q: Does Marion County have to record these wills, or is there discretion to refuse for other reasons?
The opinion answers only the signature-count question. If the certification is otherwise complete and the document satisfies § 57-1-12, the AG's view is that the county should not refuse to record solely because there is one signature instead of two. Other defects are a different inquiry.

Background and statutory framework

The West Virginia Code uses two parallel sections to handle authentication of records from outside the state. Section 57-1-12 governs court records, including wills probated by another state's court. The statute requires (1) the clerk's attestation, (2) the court seal if there is one, and (3) the judge's certification that the clerk's attestation is in proper form. Once those boxes are checked, West Virginia courts must give the foreign record full faith and credit, mirroring U.S. Const. art. IV, § 1.

Section 57-1-13 covers public records not connected to a court. Different language, similar purpose.

The wrinkle here is that some state court systems combine the judge and clerk offices. Ohio's Court of Common Pleas is the AG's example. The 1895 Wilson decision held that when one person occupies both roles, requiring two certificates from that same person serves no purpose, because "the object of the statute in requiring two certificates is to double the probability of truthful certification" and one person cannot double-check themselves. The Supreme Court of Appeals had not revisited the rule in the 127 years since, and the AG treats Wilson as still controlling.

The opinion is careful to limit itself: it analyzes only the one-signature-from-combined-judge-clerk fact pattern, not other certification defects.

Citations

• W. Va. Code § 5-3-1 (Attorney General's authority to issue opinions)
• W. Va. Code § 57-1-12 (authentication of out-of-state court records)
• W. Va. Code § 57-1-13 (authentication of public records not appertaining to a court)
• U.S. Const. art. IV, § 1 (full faith and credit clause)
• Wilson v. Phoenix Powder Mfg. Co., 40 W. Va. 413, 21 S.E. 1035 (1895)
• In re Hardin's Est., 158 W. Va. 614, 620, 212 S.E.2d 750, 753 (1975)
• Cent. Tr. Co. of Ill. v. Hearne, 78 W. Va. 6, 88 S.E. 450, 451 (1916)

Source

• Landing page: https://ago.wv.gov/media/17576/download?inline
• Original PDF: https://ago.wv.gov/media/17576/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140

February 7, 2022

Honorable Jeffrey L. Freeman
Prosecuting Attorney of Marion County
213 Jackson Street
Fairmont, WV 26554

Dear Prosecutor Freeman:

You have asked for an Opinion of the Attorney General regarding West Virginia's requirements for recording copies of wills probated in other jurisdictions in West Virginia county records. This Opinion is being issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General "shall give written opinions and advice upon questions of law . . . whenever required to do so, in writing, by. . . any . . . state officer." Where this Opinion relies on facts, it depends solely on the factual assertions in your correspondence with the Office of the Attorney General.

Your letter explains that Marion County regularly receives requests to record in the county records copies of wills probated in other jurisdictions. Based on its understanding of West Virginia Code § 57-1-13, Marion County has often declined to record these out-of-State wills when they do not include three separate attestations from the foreign State's county clerk, the presiding county judge, and the relevant "keeper of records." Your letter attaches an example from the Ohio Court of Common Pleas, in which a single individual acting as both presiding judge and court clerk purports to certify the authenticity of an Ohio probated will and its associated court records.

You have asked the following legal question:

Does a copy of a will from another State, with an attached triple seal signed only by a judge of a court of that State, without signatures from a separate clerk or keeper of records, satisfy the requirements for authentication of public records set forth in the West Virginia Code?

We conclude that West Virginia Code § 57-1-12 decides this question. That statute explains how "records and judicial proceedings of any court" from other States are authenticated in West Virginia. Specifically, for a will probated in another State to be recorded in West Virginia, it must have been authenticated by signatures from the relevant clerk and "judge, chief justice, or presiding magistrate" from that State. Where the same individual acts as both the judge and clerk for a given county, however, one signature from that individual can satisfy the statute's terms.

Discussion

Your letter refers to West Virginia Code § 57-1-13, which governs authentication of public records "not appertaining to a court." Yet an out-of-state probated will and its associated court documents are "records and judicial proceedings" that do "appertain[] to a court." Id.; see also, e.g., In re Box's Will, 106 N.W. 1063, 1065 (1906) (finding that a will and probate was governed by a similar judicial-records statute); Helm's Ex'r v. Rookesby, 58 Ky. 49, 51 (1858) (same). We thus conclude that the prior code section applies to your question instead, West Virginia Code § 57-1-12, which governs the authentication of "records and judicial proceedings of any court of the United States."

Section 57-1-12 provides that out-of-State court documents "shall be provided or admitted" in West Virginia courts "by the attestation of the [out-of-State] clerk, and the seal of the [out-of-State] court annexed, if there be a seal, together with a certificate of the [out-of-State] judge, chief justice, or presiding magistrate, that the said attestation is in due form." W. Va. Code § 57-1-12. Once these sealing and signature requirements are met, West Virginia courts must give full "faith and credit" to the out-of-State records. Id.; see also U.S. Const. art. IV, § 1 (requiring States to give full faith and credit to "the public Acts, Records, and judicial Proceedings" of other States). The consequences of a defective attestation is that out-of-State court records "will not avail as evidence in any court of this state." Cent. Tr. Co. of Ill. v. Hearne, 78 W. Va. 6, 88 S.E. 450, 451 (1916).

Ordinarily, then, two people, a clerk and a judge, must sign out-of-State court records like probated wills before those records can be recorded in West Virginia.

But not always. In Wilson v. Phoenix Powder Mfg. Co., 40 W. Va. 413, 21 S.E. 1035, 1037 (1895), the Supreme Court of Appeals considered a predecessor statute to West Virginia Code § 57-1-12. See In re Hardin's Est., 158 W. Va. 614, 620, 212 S.E.2d 750, 753 (1975) (explaining that the statute at issue in Wilson was "basically the same" as West Virginia Code § 57-1-12). Wilson held that two signatures were not required to admit an out-of-State will under the former statute when a single individual, acting as both judge and clerk, signed an attestation. 40 W. Va., 21 S.E. at 1037. Based on that reasoning, the Court affirmed the use of an Ohio probated will in a trespass case, explaining:

By the constitution of Ohio and its statute law, the probate judge is also clerk of the probate court, and keeper of its books and papers. This same person could make two certificates, but that would seem useless. The object of the statute in requiring two certificates is to double the probability of truthful certification; but this cannot be done where one man fills both places, the statute requiring the judge of the same court to certify that the clerk's certificate is in due form. It has been held that, where one person is clerk and judge both, [one certificate] is sufficient.

Id. at 1036-37.

In the more than a century since Wilson was decided, the Supreme Court of Appeals has never revisited the issue. And the situation you describe in your letter, and sample Ohio probated will, appears to mirror Wilson's facts. So when Marion County is presented with a will probated in another State and certified by a single individual that the document makes clear is acting as both judge and clerk, Marion County should not refuse to record that will just because it lacks a second signature.

To the extent that Marion County receives a will from another State which has not been probated, that would be a record "not appertaining to a court" and W. Va. Code § 57-1-13 would apply. In that situation, the County should recognize the validity of a certification by the same person in multiple official capacities pursuant to the reasoning in Wilson.

Sincerely,

Patrick Morrisey
Attorney General

Lindsay S. See
Solicitor General

David C. Tryon
Deputy Solicitor General